TUFEL AHMED KHAN Vs. HABBIBUR REHMAN KHAN

JUDGEMENT

(1.) BY the Court:

(2.) THE contention of present appellants is that they are living in Allahabad and they could not appear before the court below, hence, one more opportunity should be given to them to restore their suit. In course of argument, it has been stated that their father is an advocate, he appeared before the court below but due to his mental illness he could not appear on the prescribed time, hence, the court below was not justified in dismissing the application and reliance has been placed on AIR 1981 SC 1400, Rafiq and another vs Munshilal and another, where it has been held that the parties should not suffer for the inaction of his counsel. There is no dispute about the legal position but in the present case, the contention of the appellants is that there father who also a party as well as an advocate was appearing before the court below and due their mental sickness they could not appear. This itself is a contradictory statement and could not be termed as sufficient ground. Further reliance has been placed on AIR 1994 Delhi 359, Bank of Baroda vs Sansar Chand Kapur and another,AIR 2000 SC 1221, G.P.Srivastava vs R. Raizada and others, 2001 (92) R.D.129(Allahabad High Court) Prayag UP Nivesan Avas Avam Nirman Sahkari Samiti Ltd vs Faquir Chandra Mehrotra and 2004 (57) ALR 182 (Uttaranchal High Court), Mahant Prayag Giri and another and Committee of Management Sri Mithilesh Sanatan Dharm Higher Secondary School, Kankhal, Haridwar and others. But these relate to order 9 Rule 9 of CPC where question of restoration of suit was involved. In the present case, suit was dismissed on 24.2.2007, thereafter restoration application was also dismissed in October,2009 and the contention of the respondent is that party who is negligent could not be condoned at every time and there is no illegality in the impugned order. Reliance has been placed on RLW 1953 page 469 Tejraj vs Sansmal where it has been held that: